USA v. Miguel Angel Hernandez-Abraham, No. 13-11932 (11th Cir. 2013)

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Case: 13-11932 Date Filed: 12/30/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-11932 Non-Argument Calendar ________________________ D.C. Docket No. 9:11-cr-80188-DTKH-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MIGUEL ANGEL HERNANDEZ-ABRAHAM, a.k.a. Miguel Hernandez, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (December 30, 2013) Before PRYOR, MARTIN, and FAY, Circuit Judges. PER CURIAM: Case: 13-11932 Date Filed: 12/30/2013 Page: 2 of 3 Miguel Hernandez-Abraham appeals his 77-month sentence after pleading guilty to one count of illegal reentry into the United States after having been deported, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, he argues the district judge lacked authority to increase his sentence, based upon prior convictions that were neither charged in the indictment nor proved to a jury beyond a reasonable doubt. We affirm. We review constitutional sentencing issues de novo. United States v. Steed, 548 F.3d 961, 978 (11th Cir. 2008) (per curiam). In Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S. Ct. 1219, 1222 (1998), the Supreme Court held the government does not need to prove beyond a reasonable doubt a defendant had prior convictions or allege those prior convictions in the indictment in order to use them to enhance a defendant s sentence under a federal statute. Although the Supreme Court has since expressed some doubt as to whether Almendarez-Torres was correctly decided, it has explicitly declined to revisit that decision. Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S. Ct. 2348, 2362 (2000); see also Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (declining to revisit Almendarez-Torres, because the parties did not contest that decision). Rather, the Supreme Court has maintained, [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum 2 Case: 13-11932 Date Filed: 12/30/2013 Page: 3 of 3 must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. Furthermore, we since have held Apprendi did not overrule Almendarez-Torres. United States v. Beckles, 565 F.3d 832, 846 (11th Cir. 2009); United States v. Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2006). We have also recognized that we are bound to follow Almendarez-Torres unless and until the Supreme Court itself overrules that decision. United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001). Because Hernandez-Abraham concedes binding precedent forecloses his argument, the district judge erred by enhancing his sentence based on prior convictions not charged in the indictment or proved to a jury beyond a reasonable doubt. AFFIRMED. 3

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